Getting divorced is stressful enough, but the practical details involved in deciding who gets to remain in the home can make the whole ordeal seem overwhelming. Couples who can’t agree on this matter will find themselves having to adhere to whatever the court decides. California is a community property state, which means that each partner in a marriage owns an equal share of property accumulated during that marriage, but this doesn’t apply to all situations. For instance, a home purchased by one party before the wedding isn’t covered by community property law. Further, the final determination of homeownership is a different legal matter than which parent is allowed to remain in the home while the divorce is in progress. This is because divorce proceedings can take weeks or even months.
Is the Home Community Property Or Separate Property?
From a legal perspective, both parties have a right to remain in the home during divorce proceedings if the home falls within community property statutes. Community property laws apply even if only one party’s name is on the title. This can be uncomfortable and even painful for some. In the case of documented domestic violence, the injured party can get a court order stating that the offending party must move out.
When domestic violence or other extenuating circumstances aren’t part of the picture, neither spouse can force the other to vacate the home. The party that finds the situation the most unbearable is usually the one to leave. Those who’ve chosen this option should realize that it in no way means that they have forfeited their financial interest in the home.
What Are the Best Interests of the Children?
The prevailing standard in California divorce law when children are involved is “the best interests of the children.” Courts often grant the person who is the primary caregiver the right to remain in the home with the children temporarily. However, in community property states, this doesn’t mean that the party who stays is granted ownership of the house. The final divorce decree will likely contain a provision for the property to be divided equally between the two former spouses, which can be problematic for those who want to stay in the property but can’t afford to buy the other person out.
What About Rental Property?
Rentals involve their own set of complications when it comes to divorce. Because a judge cannot legally cancel a rental agreement, this often comes down to whose name is on the lease. If both names are on it, mediation may be required to resolve. Keep in mind that one or both parties will still be responsible for living up to the lease terms.
Contact Mohajer Law Firm for More Information
As you can see, several complexities are involved in who gets to stay in the house during a divorce. Contact us today for a free consultation to get started exploring your options.
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